How Is Child Custody Decided in Alberta? The Best Interests Test

When you separate, one of the first questions is who the children will live with and who will make decisions for them. Many parents use the word custody, but the law now talks about parenting time and decision-making responsibility.

This article explains, in general terms, how an Alberta court decides parenting arrangements if you and the other parent cannot agree. It covers the best interests test, the factors a judge weighs, and the practical steps that usually come first.

This article covers the law of Alberta.

Custody is now parenting time and decision-making

Under the Divorce Act, decision-making responsibility means the responsibility for making significant decisions about a child's well-being, and parenting time means the time a child spends in the care of a person. A parenting order is the order that sets these out.

Decision-making responsibility can go to one spouse, both spouses, or a non-spouse who is a party to the application, so it can be sole or joint and can even be divided by subject. Unless the court orders otherwise, the person who has parenting time makes day-to-day decisions during that time.

Which law applies to your family

If a divorce action has started, parenting is dealt with under the Divorce Act, and the Family Law Act cannot be used for a matter already decided under the Divorce Act. If you were not married, or no divorce has been started by you or the other guardian, you can apply under the Family Law Act as long as the child lives in Alberta.

In Alberta, the ability to make decisions about a child is tied to guardianship rather than parentage status, and in most cases a child's parents are also guardians. If guardians agree after separation, they can keep exercising their powers without a court order. If they disagree, either guardian can apply for a parenting order.

The best interests test and its factors

When making a parenting order or contact order under the Divorce Act, the court considers only the child's best interests. It must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. Alberta guidance describes the same approach for guardians who cannot agree under the Family Law Act.

The Divorce Act lists factors the court weighs. They include:

• The child's needs for their age and stage, including stability.
• The child's relationships with each parent, siblings, grandparents and others.
• Each person's willingness to support the child's relationship with the other parent.
• The history of the child's care and each person's plans for care.
• Each person's ability to meet the child's needs and to communicate and cooperate.
• Relevant civil or criminal proceedings and orders.
• The child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.

Alberta guidance for Family Law Act cases likewise points to the child's care history, the child's views, the benefit of relationships with both parents or guardians, and any history of family violence.

Children's views, family violence and past conduct

The court considers the child's views and preferences, giving them due weight according to the child's age and maturity, unless they cannot be ascertained. The Act sets no age at which a child decides.

The court must consider family violence and its impact, including its nature, seriousness, frequency and timing, any pattern of coercive and controlling behaviour, whether the child was targeted or exposed, harm or risk of harm to the child, and steps taken to prevent further violence. By contrast, the court must not consider a person's past conduct unless it is relevant to their parenting time, decision-making responsibility or contact.

Is 50/50 the starting point?

No. The Divorce Act says a child should have as much time with each spouse as is consistent with the child's best interests, but this is a guiding principle subordinate to best interests, not a presumption of equal time. Where safety is a concern, such as family violence, the child's safety, security and well-being take priority.

What to do next

• Register for the Parenting After Separation course, which is required before filing a divorce or Family Law Act application in the Court of King's Bench.
• If you are in Greater Edmonton, Calgary, Red Deer or Grande Prairie, check the Family Justice Strategy requirements, including the course certificate and a recent attempt at alternative dispute resolution.
• Write down your child's care history and your proposed plan for care.
• If you and the other parent agree, consider a parenting plan, which the court must include in its order unless it is not in the child's best interests.
• Speak with a lawyer about your own facts before filing.

Frequently asked questions